How to avoid liability for your own swimming pool and stay safe at someone else’s
As the coronavirus swept the nation in the spring of 2020, many families were looking at their “new normal,” which meant entertaining children who were stuck at home during the summer — and with public pools and recreational activities closed.
So, what’s a parent to do?
For a lot of people, it meant investing in a backyard pool, either a permanent, in-ground type or an inflatable or above-ground version just to keep the kids (and themselves) cool and happy over the summer.
But any pool or swim area has risks. A young child can drown in just a few inches of water. Adults, too, can drown — like this 22-year-old former captain of his college swim team, who drowned during lifeguard tryouts in a lake in Massachusetts.
But Grayson fell in the pool.
Once the adults realized Grayson was no longer with the other children, they immediately began to search for him. Grayson’s dad discovered him unresponsive in the pool and immediately began to perform CPR. After being in critical condition, nearly a month on a ventilator, lung infections, and brain damage, Grayson survived.
A toddler slipping through a locked gate and gaining access to a pool — and then falling in — is every parent’s worst nightmare.
The Centers for Disease Control and Prevention (CDC) says that 10% of parents whose children drown watched it happen because they didn’t know it was happening. Someone can drown if they’re not rescued within 20 seconds of being in distress.
When a person drowns on TV or in the movies, it’s usually a dramatic scene with arms flailing and screams for help. In reality, drowning is often silent. Sometimes, a victim is simply unable to take a breath or call for help.
Swimming pool safety tips
Safe Kids North Carolina provides these safety tips for children near pools and open water:
- Never leave a child unattended near water. Always watch a child near or in the water.
- Keep children away from pool drains, pipes and other openings.
- Have a charged phone near at all times.
- Know how to perform CPR on children and adults.
- Understand the basics of lifesaving so you can assist in an emergency.
- Install a fence at least 4 feet high around the perimeter of the pool or spa.
- Use self-closing and self-latching gates.
- Ensure all pools and spas have compliant drain covers. Install an alarm on the door leading from the house to the pool.
- Pay attention to the warning flags at the beach that indicate the possibility of rip currents.
- Teach children what to do if caught in a rip current. That is, stay calm, don't fight the current, when free of the current, escape the current by swimming in a direction following the shoreline. If at any time you are unable to reach the shore, draw attention to yourself and call for help.
- Remember that YOU are your child’s best lifeguard. If you’re at a pool or other body of water where there are lifeguards present, the guards’ job is to watch everyone, not just your child. In addition to watching the pool, the guard might also need to be aware of poolside or deck behavior and other distractions. Because a person can drown in 20-60 seconds, it’s imperative that you’re always taking responsibility for watching your own child, especially in a crowded swimming space.
Children ages 1-4 are at the highest risk of drowning, followed by children ages 5-7. Drowning is the leading cause of accidental death among children ages 1-4. (Birth defects are the only higher cause of death in that age group.)
Alcohol use is related to nearly 70% of water recreation deaths in teens and adults.
For more safety advice, visit Water Safety for Kids and Installing a Pool Fence Can Save Your Child’s Life. Enjuris is proud to partner with Pool Safely to prevent child drownings. You can take the Pool Safely Pledge!
Pool Safely is a national public education campaign from the U.S. Consumer Product Safety Commission (CPSC). Learn more about how Enjuris and Pool Safely help make water play and summer fun safer for families!
Know the signs of drowning
- Head is low in the water, mouth at water level
- Eyes closed
- Head tilted back with mouth open
- Eyes glassy or unable to focus
- Hair over face or eyes
- Hyperventilating, gasping
- Not using legs vertically
- Trying to roll over on their back, or trying to swim but not making progress
- Appear to be climbing a ladder
A person who cannot breathe cannot speak. A person who is drowning cannot wave for help because instinct forces them to extend their arms and press down on the surface of the water. This is called the “Instinctive Drowning Response,” and a victim cannot control their arm movements. That means they also can’t wave for help, reach for rescue equipment, or try to move or swim toward a rescuer. The victim’s body will remain upright in the water with no evidence of kicking, and they can only last about 20 to 60 seconds before their body begins to submerge underwater.
Common causes of child drownings
There’s any number of ways a child could be injured in a pool, but these are some of the most common:
- Drowning as a result of distracted or improperly trained lifeguards (or lack of adult supervision)
- Drowning as a result of inadequately designated and marked shallow and deep ends
- Burns caused by pool chemicals
- Entrapment in pool drains
- Slip and fall accidents from slippery walking surfaces
- Drowning because of broken gates or fences
- Diving board accidents
North Carolina swimming pool laws and regulations
If you have a pool on your property (or are planning for one), you must be aware of the North Carolina building codes with respect to fences and barriers around swimming pools, along with other regulations intended to keep everyone safe.
Swimming pool fences and barriers
- A North Carolina swimming pool must be fully surrounded by a barrier or fence that must be at least 4 feet (48 inches) in height. The fence must not have more than 2 inches of clearance on the bottom (between the ground and the bottom of the barrier). There can’t be any gaps in the barrier that are more than 4 inches wide.
- An access gate must be able to accommodate a locking device, and a pedestrian access gate must open away from the pool (outward), self-close, and be self-latching. An access gate not intended for pedestrian access must be self-latching and the latch device must be on the pool side of the gate.
- If part of the barrier is a wall of a house or building, the pool must have a powered safety cover. In addition, any door that has direct access to the pool from that wall must have an alarm with an audible warning if the door or screen opens. The alarm must activate within 7 seconds and sound for a continuous 30 seconds, and it must be able to be heard throughout the house.
- If you have an above-ground pool with a structure used as its own barrier (that is, the barrier is mounted on top of the pool structure and access to the pool is by a ladder or steps), the ladder or steps must have a barrier around them. When the ladder or steps are secured or removed, there cannot be any opening of more than 4 inches. The exception is that a spa or hot tub with a safety cover does not need barriers.
You must have an electrical permit in order to ensure that any metal part within 5 feet of the pool is grounded and safe.
Metal parts could include (but aren’t limited to):
- Parts within or attached to pool structure
- Conductor grid
- Forming shells
- Parts of pump motors, pool covers, electric motors, pool heaters
Every public and private swimming pool in North Carolina must be inspected. An inspector will check the water and safety equipment like life vests and rescue hooks, along with anti-entrapment devices on drains.
All North Carolina swimming pools must be filled with water that is fresh, potable, and is from an approved public water supply source. The exception is saltwater pools or a pool that’s filled with water from some other approved source. Public pools and residential pools, where possible, must drain to the public sewage system. If a residential pool can’t drain to the public sewage system, it must drain to an approved drainage ditch or septic system.
Liability in a North Carolina swimming pool accident
A swimming pool injury is under the area of law known as premises liability. Under North Carolina law, any person who is lawfully permitted to be on a property is owed a reasonable duty of care by the property owner.
That means the premises must be free of hazards or dangers that the owner would reasonably be aware of, and the owner must warn a visitor if there are hazards that can’t be remedied.
So, if you’re swimming in a friend’s pool and you’re injured because of a defect (like a broken diving board, for example), that might lead to a premises liability claim if the friend didn’t warn you that the board was broken.
North Carolina contributory negligence law
North Carolina follows a pure contributory negligence system of law, which means a plaintiff can’t recover damages if they are partially at fault.
Sometimes, accidents are primarily the fault of one person but might have been prevented if another person had acted differently or been more cautious. If the court finds that a plaintiff was liable for any portion of the accident, they cannot recover any damages.
This might be especially important in a swimming pool accident because of the nature of how people use pools.
For example, if a guest dives into a pool and becomes seriously injured because it was too shallow to dive (and the pool’s depth was clearly marked), that would be the guest’s liability or fault, and the homeowner would likely not be responsible for damages. Likewise, if guests are horsing around or playing near the pool and someone falls in and is injured, the liability in that scenario would likely also attach to the injured person.
Common defenses to a premises liability lawsuit
A property owner can avoid responsibility in a premises liability action if they can prove one of the following scenarios:
- That the dangerous condition was open and obvious (a condition is "open and obvious" if a reasonable person should have seen and avoided the condition).
- That misuse of the property led to the plaintiff’s injury.
- That the injured person was aware of the dangerous condition before they were hurt.
- That the injury was caused by a minor, trivial, or insignificant defect on the property (this is sometimes called the "trivial defect defense").
Will my homeowners insurance cover a premises liability lawsuit?
If you have property or casualty insurance, it covers damage to your property (like fire, flood, theft, etc.). If someone sues you for negligence, it might be covered under a liability insurance policy if you have one. You might also be covered under an umbrella policy.
Even if you weren’t negligent but someone was injured, your liability insurance might include no-fault coverage for medical payments up to a certain amount.
A pool is a BIG responsibility
Swimming pool owners know that they’re a lot of work — keeping them clean and well-maintained is a big job. But the other part of the responsibility is knowing who is swimming and when. If you’re an adult who allows guests to use your pool, or who has children over to swim, you’re ultimately responsible for their safety.
If you’re injured at a public pool (or if you’ve lost a family member in a swimming pool accident or drowning), you should call a North Carolina personal injury lawyer for help. A municipality can be sued for premises liability issues, just like a privately owned pool. This also goes for negligence on the part of lifeguards or other employees who are responsible for your safety. However, these cases tend to be more complex.
The Enjuris law firm directory can help you find a North Carolina lawyer who can handle your claim for your swimming pool injury or who can help your defense if you’re sued for an accident on your property.